PER CURIAM.
Plaintiff Lareesa Berman, through counsel, appeals the district court's denial of Plaintiff's motion for a new trial. Plaintiff sought a new trial after the jury returned a verdict in favor of Defendant Thomas Kafka in Plaintiff's
This case arises out of statements made by Defendant to the Florida Department of Economic Opportunity ("DEO") in which Defendant indicated that Plaintiff was involved in embezzling money from Defendant's company. Plaintiff's husband, Chris Berman, was employed by Defendant's company and applied for unemployment benefits after his employment was terminated. Defendant challenged the application and later appealed the DEO's award of unemployment benefits to Plaintiff's husband. During the course of the appeal, in emails sent to DEO employees, Defendant made these two statements: (1) "I asked Connie not to lose sight of the fact that you initially ruled in our favor and that we proved that Chris Berman and his wife embezzled money from our company;" and (2) "Part of the money was embezzled by his wife."
Plaintiff brought this civil action against Defendant for libel
Plaintiff filed a motion for a new trial, pursuant to Fed. R. Civ. P. 59(a)(1). The district court denied Plaintiff's motion. The district court then granted Defendant's motion for attorneys' fees and costs. Plaintiff filed a motion for reconsideration of the district court's award, which the district court denied. This appeal followed.
We review a district court's denial of a motion for new trial for abuse of discretion.
On appeal, Plaintiff first contends that a new trial is warranted because the jury verdict was contrary to the great weight of the evidence. Because Plaintiff failed to move for a directed verdict at trial, however, "our inquiry is limited to whether there was
Here, the jury's finding that Defendant's statements were substantially true is supported by evidence in the record. At trial, Defendant introduced two checks written out to "Chris Berman c/o Trifecta Gaming USA, Inc." Instead of depositing the checks into Defendant's business account as intended, Plaintiff's husband endorsed the checks over to Plaintiff; her signature also appears on the back of the checks. Never were the funds deposited in Defendant's business account. This evidence supports a finding that Plaintiff was involved with her husband in a scheme to embezzle money from Defendant and, thus, supports the jury's finding that Defendant's statements were substantially true. To satisfy his burden of proving a "substantial truth" affirmative defense, Defendant need only show that the "`gist' or the `sting' of the statement is true."
Plaintiff next contends that the district court erred in denying her a new trial based on the district court's improper jury instructions. Because Plaintiff failed to object timely to the jury instructions at trial, we review her arguments only for plain error.
The district court committed no error — plain or otherwise — in instructing the jury on Plaintiff's burden of proof.
The district court also committed no plain error in instructing the jury on the affirmative defense of "substantial truth and good motives" under Florida law. Defendant pleaded the affirmative defenses of "truth" and "good motive" in his answer and later clarified — in response to Plaintiff's motion to strike, and in Defendant's trial brief — that he was relying on Florida's "substantial truth doctrine." Plaintiff — well before trial — was thus put on sufficient notice of Defendant's affirmative defense. Where "a plaintiff receives notice of an affirmative defense by some means other than pleadings, the defendant's failure to comply with [Fed. R. Civ. P.] 8(c) does not cause the plaintiff any prejudice," and the trial court commits no error by considering the affirmative defense on the merits.
"Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the `gist' or the `sting' of the statement is true."
The district court also committed no plain error in not instructing the jury on the definition of the term "good motive." The term "good motive" is capable of being understood by a layperson without a definition. Moreover, nothing evidences that the district court's failure to define the term "good motive" altered the outcome of Plaintiff's case.
Plaintiff next contends that a new trial is warranted based on the district court's improper evidentiary rulings. "The district court has broad discretion to determine the admissibility of evidence, and we will not disturb the court's judgment absent a clear abuse of discretion."
Plaintiff first objects to the district court's exclusion of Defendant's corporate tax returns, which Plaintiff contends would have shown that Defendant's company reported no revenue or losses during 2006 and 2007. Plaintiff contends this evidence would have supported a finding that neither Plaintiff nor her husband could have embezzled money from Defendant's company. The district court sustained Defendant's objections based on relevancy and jury confusion. We agree that the proposed tax returns had very little — if any — relevance to the issue of whether Defendant's defamatory statements were substantially true. Because whatever minimal probative value the tax returns may have had was substantially outweighed by the high likelihood of confusing the issues and of misleading the jury, the evidence was properly excluded under Fed. R. Evid. 403.
Although Plaintiff contends on appeal that the district court erred in admitting into evidence copies (as opposed to originals) of the allegedly embezzled checks, Plaintiff herself introduced duplicate copies of the same checks into evidence. On this record, we see no abuse of discretion.
The district court also abused no discretion in admitting copies (as opposed to originals) of Defendant's payroll checks. Although Plaintiff objected that the checks had not been certified by the bank, she raised no "genuine question" about the authenticity of the original documents. The duplicate copies were thus admissible under Fed. R. Evid. 1003.
We are unpersuaded by Plaintiff's argument that the district court abused its discretion in denying her motion for a new trial based on defense counsel's alleged improper comments during opening and closing argument. The district court has wide discretion to regulate the scope of counsel's arguments.
Plaintiff contends that defense counsel made improper comments that were unsupported by the evidence and that expressed counsel's personal opinion about Plaintiff's motive for filing suit and about the credibility of Plaintiff's husband. Having reviewed the record, we conclude that the comments to which Plaintiff now objects — none of which were objected at trial — did not rise to the level of plain error.
Plaintiff appeals the district court's award of attorneys' fees and costs to Defendant, pursuant to Fla. Stat. § 768.79. Briefly stated, Plaintiff contends that Fla. Stat. § 768.79 is inapplicable to her case because Plaintiff sought both monetary and non-monetary relief (the latter in the form of a letter of apology).
Plaintiff first raised this argument in her motion for reconsideration of the district court's order awarding Defendant attorneys' fees and costs. The district court rejected Plaintiff's argument on two independent grounds. First, the district court concluded that Plaintiff's argument was raised improperly in her motion for reconsideration. Second, the district court rejected Plaintiff's argument on the merits.
On appeal, Plaintiff addresses only the merits of her argument about the applicability of section 768.79; she raises no challenge to the district court's independent ground for rejecting her argument as untimely raised. Plaintiff has thus abandoned this argument.
AFFIRMED.